ACKNOWLEDGEMENT AND REAFFIRMATION OF LOAN AND SECURITY AGREEMENT
EXHIBIT
10.2
ACKNOWLEDGEMENT
AND REAFFIRMATION
OF
THIS ACKNOWLEDGEMENT AND
REAFFIRMATION OF LOAN AND SECURITY AGREEMENT (this “Agreement”) is entered into
this 9th day of November, 2009, by and between Silicon Valley Bank (“Bank”) and Betawave
Corporation, a Delaware corporation (“Betawave-DE”) whose address is
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RECITALS
A. Bank
and Betawave Corporation a Nevada Corporation (“Betawave-NV”), have entered
into that certain Loan and Security Agreement, dated as of March 27, 2009, as
amended by that certain First Amendment to Loan and Security Agreement by and
between Bank and Betawave-NV, dated as of July 31, 2009, and as further amended
by that certain Second Amendment to Loan and Security Agreement by and between
Bank and Betawave-NV, dated as of August 14, 2009 (as the same may from time to
time be amended, modified, supplemented or restated, the “Loan
Agreement”). Bank has extended credit to Betawave-NV for the
purposes permitted in the Loan Agreement.
B. Betawave-NV
has filed articles of conversion with the State of Nevada and has filed a
certificate of conversion, a certificate of incorporation and a certificate of
designations with the State of Delaware. The sole purpose of the
conversion is to reincorporate into a Delaware corporation (the “Reincorporation”).
C. The
Loan Agreement permits the Reincorporation with at least 30 days prior written
notice. Bank has received such prior written notice and now requires
Betawave-DE to acknowledge and reaffirm its liability for the Obligations under
the Loan Agreement, subject to the conditions and in reliance upon the
representations and warranties set forth below.
AGREEMENT
Now,
Therefore, in
consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:
1. Definitions. Capitalized
terms used but not defined in this Agreement shall have the meanings given to
them in the Loan Agreement.
2. Acknowledgement and
Reaffirmation. Betawave-DE hereby acknowledges and confirms
that pursuant to Section 265 of the Delaware General Corporation Law: (i)
Betawave-NV was converted into Betawave-DE, with Betawave-DE being deemed the
same legal entity as Betawave-NV, and (ii) such conversion did not affect any
obligations or liabilities of Betawave-NV, or any liens against any of
Betawave-NV’s assets. Accordingly, Betawave-DE hereby acknowledges
and reaffirms that it is the Borrower under the Loan Documents and that it is
obligated to, and agrees to, pay and perform when due all present and future
Obligations under, based upon, or arising out of the Loan Documents and
instruments and agreements relating thereto. Betawave-DE agrees to
honor, perform and comply with, in all respects, all terms and provisions of all
of the Loan Documents. All references in the Loan Documents to
“Borrower” shall be deemed to refer to the Betawave-DE from and after the date
hereof.
Betawave-DE
acknowledges that the Obligations are due and owing to Bank from Betawave-DE,
without any defense, offset or counterclaim of any kind or nature
whatsoever.
Bank
hereby acknowledges the Reincorporation. The Reincorporation shall
not, in and of itself, be deemed an Event of Default under the Loan
Agreement. Bank’s acknowledgement of the Reincorporation shall in no
way be deemed a consent to future transactions not permitted under the Loan
Agreement.
3. Limitation of Bank
Acknowledgement.
3.1 Bank’s
acknowledgement set forth in Section 2, above, is effective
for the purposes set forth herein and shall be limited precisely as written and
shall not be deemed to (a) be a consent to any amendment, waiver or
modification of any other term or condition of any Loan Document, or
(b) otherwise prejudice any right or remedy which Bank may now have or may
have in the future under or in connection with any Loan Document.
3.2 This
Agreement shall be construed in connection with and as part of the Loan
Documents and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Loan Documents, except as herein amended, are hereby
ratified and confirmed and shall remain in full force and effect.
4. Representations and
Warranties. To induce Bank to enter into this Agreement,
Betawave-DE, as Borrower, hereby represents and warrants to Bank as
follows:
4.1 Immediately
after giving effect to this Agreement (a) the representations and
warranties contained in the Loan Documents are true, accurate and complete in
all material respects as of the date hereof (except to the extent such
representations and warranties relate to an earlier date, in which case they are
true and correct as of such date), and (b) no Event of Default has occurred
and is continuing, other than the Event of Default described in, and waived
pursuant to, the Waiver and Third Amendment to Loan and Security Agreement,
dated as of the date hereof, between Bank and Borrower;
4.2 Borrower
has the power and authority to execute and deliver this Agreement and to perform
its obligations under the Loan Agreement, as amended by this
Agreement;
4.3 The
organizational documents of Betawave-DE delivered to Bank immediately prior to
the execution of this Agreement (the “Organizational Documents”)
remain true, accurate and complete and have not been amended, supplemented or
restated and are and continue to be in full force and effect;
4.4 The
execution and delivery by Borrower of this Agreement and the performance by
Borrower of the Obligations, have been duly authorized by all necessary action
on the part of Borrower;
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4.5 The
execution and delivery by Borrower of this Agreement and the performance by
Borrower of the Obligations, do not and will not contravene do not and will not
contravene (a) any Requirement of Law, (b) any contractual restriction with a
Person binding on Borrower, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding
on Borrower, or (d) the Organizational Documents;
4.6 The
execution and delivery by Borrower of this Agreement and the performance by
Borrower of the Obligations, do not require any Governmental Approval from any
Governmental Authority (except for Governmental Approvals which have already
been obtained and are in full force and effect); and
4.7 This
Agreement has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’
rights.
5. Counterparts. This
Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
6. Effectiveness. This
Agreement shall be deemed effective upon the due execution and delivery to Bank
of this Agreement by each party hereto and shall be deemed effective as of
October 6, 2009.
7. Governing Law. This
Agreement and the rights and obligations of the parties hereto shall be governed
by and construed in accordance with the laws of the State of
California.
[Signature
page follows.]
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In
Witness Whereof, the parties hereto have caused this Agreement to be duly
executed and delivered as of the date first written above.
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BANK
Silicon
Valley Bank
By: /s/
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Name: ▇▇▇▇
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Title: Relationship
Manager
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BORROWER
Betawave
Corporation,
a
Delaware corporation
By: /s/
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Name: ▇▇▇▇▇
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Title: Secretary
and General
Counsel
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